The Centers for Medicare & Medicaid Services (CMS) has established new requirements for long-term care facilities (LTC) participating in Medicare and Medicaid, the first set of comprehensive revisions to the participation requirements in 25 years. The regulations take effect beginning Nov. 28, 2016, but some requirements will be implemented in phases. Operators of LTC facilities should review the new regulations closely, including 10 aspects that may require significant compliance changes. Deadlines are looming to come into compliance with sweeping changes to the Centers for Medicare & Medicaid Services (CMS) requirements for long-term care facilities (LTC) participating in Medicare and Medicaid. The CMS final rule was published in the Federal Register on Oct. 4, 2016. This is the first set of comprehensive revisions to the participation requirements in 25 years.

CMS reviewed the prior versions of the regulations with the goal of improving safety, quality of life, care and services, as well as to align the rule with current professional standards. The rule finalizes regulations that were proposed on July 16, 2015 (80 Fed. Reg. 42168), for which CMS received more than 9,800 comments. The regulations are effective on Nov. 28, 2016, but various portions of the requirements will be implemented in phases.

The new regulations are lengthy and detailed, and operators of LTC facilities must review them closely. Ten aspects of the rule may require significant compliance changes for LTC operators:6. Pre-Dispute Arbitration Agreements Are Prohibited

In its proposed rule, CMS included a number of specific parameters regarding arbitration agreements, including a requirement that the agreement be explained to the resident and a prohibition stating that the agreement cannot be contained within any other agreement or paperwork. In the final rule, CMS prohibits all pre-dispute arbitration provisions and includes procedural requirements if a resident is asked to sign an arbitration agreement after a dispute has arisen. CMS received a number of comments in response to the proposal regarding arbitration agreements, including a letter signed by 34 senators urging CMS to ban these types of clauses. Another letter signed by 16 state attorneys-general argued that these types of agreements were harmful and should be prohibited. According to CMS, the new ban will “have no legal effect on the enforceability of existing pre-dispute arbitration agreements between LTC facilities and patients, and therefore, we believe that the terms of the [Federal Arbitration Act] are not implicated.” The preamble to the rule also states that “the Secretary, in this final rule, is acting well within her statutory authority, particularly given the concerns raised by commenters over the unfairness of pre-dispute arbitration and the harm these agreements cause LTC facility residents.”

In 2013, Medicare paid $15.1 billion for hospice care for roughly 1.3 million people who were treated by 3,925 for-profit and non-profit programs throughout the country. Under federal rules, the patient or a guardian must sign an election statement accepting the hospice care, and the attending physician must certify that the patient is terminally ill and beyond a cure. But a disturbing new report by the Office of Inspector General of the Department of Health and Human Services claims that some unscrupulous hospice operators, doctors, and staff are aggressively recruiting patients for their programs in an effort to maximize profits – even when in some cases the patients shouldn’t be in hospice. The improper and fraudulent activities amount to hundreds of millions of dollars. In a third of the cases examined, the hospice election statements lacked required information or failed to adequately state the implications of the withdrawal of most medical care. Moreover, in 14 percent of the cases, the physician did not meet requirements when certifying that the beneficiary was terminally ill. Those doctors appeared to have “limited involvement” in determining that the beneficiary was appropriate for hospice care. In a number of cases, the patients outlived standard hospice care, which usually assumes a patient won’t live much longer than six months. That suggests that the patients were inappropriate candidates for the program, and as a consequence may have missed out on needed medical care.

For the article from the Financial Times, click here.